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Hicks v. United States

United States District Court, S.D. Illinois

October 28, 2016

CHARLES R. HICKS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 11-cr-30207-DRH

          MEMORANDUM AND ORDER

          Herndon United States District Judge.

         I. Introduction

         This matter is before the Court on petitioner Charles R. Hicks' motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). In his § 2255 petition, Hicks brings an array of arguments seeking relief. He raises various issues alleging, ineffective assistance of counsel, and prosecutorial misconduct. The government filed its response in opposition of Hicks' § 2255 petition (Doc. 3). For the following reasons, petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is denied[1].

         II. Background

         On June 20, 2012, the grand jury returned a superseding indictment against Hicks for production of child pornography in violation of 18 U.S.C. § 2251(a) (Count 1); receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) (Count 2); and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (Count 3). United States v. Hicks, 11-cr-30207-DRH[2], (Doc. 30). Trial commenced as to these counts on March 11, 2013. On March 14, 2013, the jury found Hicks guilty on Counts 1, 2 and 3 of the superseding indictment (Cr. Docs. 96, 97, 98, & 99).

         On April 14, 2014, the defendant and the government jointly filed an agreement regarding sentencing and waiver of appeal. (Cr. Doc. 126). In the agreement, the parties agreed that the calculations set forth in the PSR (Cr. Doc. 118) were correct. The agreement also laid out the terms between the parties in which the government agreed to recommend a sentence of not more than 180 months' imprisonment, supervised release of not more than 10 years, no fine, and restitution in the amount of $1, 000 to be paid to Hicks' two identified victims. (Cr. Doc. 126). In exchange for the government's concessions, Hicks agreed to pay the restitution, withdraw his objections to the PSR, and “waive certain rights he may have to contest his conviction and sentence. . . .” Id. Specifically, Hicks, “knowingly and voluntarily waive[d] his right to contest any aspect of his conviction or sentence that could be contested under Title 18 or Title 28, or under any other provision of federal law. . . .” with certain limited exceptions. Id.[3]

         On April 25, 2014, the Court sentenced Hicks to 180 months on Counts 1, 180 months on Counts 2, and 120 months on Count 3, with all terms to run concurrently (Cr. Doc. 128). Hicks was also sentenced to a 10 year term of supervised release on each count, to run concurrently, and he was ordered to pay $500 in restitution to his victims in the “Vicky” and “J-Blonde” series, as well as a $300 special assessment (Cr. Doc. 128). Judgment reflecting the same was entered the same day (Cr. Doc. 130). Hicks did not attempt to appeal his conviction and sentence.

         On April 27, 2015[4], Hicks filed a timely motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255, in which he raises three arguments: (1) ineffective assistance of counsel on the part of Federal Public Defender Ethan Skaggs for failing to convey an offer from the government to him, (2) ineffective assistance of counsel on the part of defense attorney Justin Kuehn for withdrawing his objections and motions without consulting Hicks, and (3) prosecutorial misconduct for the actions of Agent Derek Davis and for failing to provide a copy of the search warrant to Hicks during the search of Hicks' residence. The Court shall address each argument in turn.

         III. Law

         A prisoner may move to vacate, set aside or correct his sentence if he claims “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

         Section 2255 is an extraordinary remedy because it asks the district court “to reopen the criminal process to a person who has already had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Accordingly, relief under Section 2255 is “reserved for extraordinary situations, ” Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993)), as a collateral attack pursuant to Section 2255 is not a substitute for a direct appeal. Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007).

         Unless a movant demonstrates changed circumstances in fact or law, he may not raise issues already decided or waived on direct appeal. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). A petitioner cannot raise constitutional issues that he could have, but did not directly appeal, unless he shows good cause for, and actual prejudice from, his failure to raise them on appeal, or unless failure to consider the claim would result in a fundamental miscarriage of justice. Bousley v. United States, 523 U.S. 614, 622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000). Likewise, a Section 2255 motion cannot pursue non-constitutional issues that were not raised on direct appeal regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The only way such issues could be heard in the Section 2255 context is if the alleged error of law represents “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979).

         Hicks raises three claims, two of which he purports to be claims of ineffective assistance of counsel. To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate (1) his attorney's performance “fell below an objective standard of reasonableness, ” and (2) “but for counsel's unprofessional errors the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). To satisfy the first prong, “the Court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690. To satisfy the second prong, a petitioner must demonstrate to a “reasonable probability” that without the unprofessional errors, “the result of the proceeding would have been different.” Id. at 696.

         A district court's analysis begins with a “strong presumption that the defendant's attorney rendered adequate representation of his client.” United States v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000). Thus, a petitioner must overcome a heavy burden to prove that his attorney was constitutionally deficient. Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006). In order to establish that counsel's performance was deficient, the defendant must show errors so serious that “counsel was not functioning as the ...


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